Search form

Federal Contractors Must Continue to Post Notice of Labor Rights, Court Holds

By Philip B. Rosen
  • May 14, 2015

A federal district court in Washington, D.C. has rejected a constitutional challenge by the National Association of Manufacturers and Virginia Manufacturers Association to President Barack Obama’s 2010 Executive Order requiring certain federal contractors to post a “Notification of Employee Rights under Federal Labor Laws” on the basis that it violates the First Amendment right of federal contractors to “refrain from speaking.” Nat’l Ass’n of Mfrs. v. Perez, No. 1:13-cv-01998 (D.D.C. May 7, 2015). The Poster notifies contractor employees of their right to organize and other provisions of the National Labor Relations Act (NLRA). 

Under the controversial Executive Order 13496 (see the Department of Labor’s fact sheet), federal contractors are faced with the unacceptable alternatives of posting a notice which promotes unionization, and often may be contrary to a federal contractor’s views, or subjecting themselves to sanctions and possible loss of federal contracts. Because of this Hobson’s choice, the Associations argue, the posting requirement compels federal contractors to convey speech they do not support. 

The District Court found no First Amendment violation, however. The court reasoned that despite the posting requirement, federal contractors remain free to express their views contrary to those expressed in the Poster, and lawfully discourage unionization, without losing their federal contracts. 

In addition, the District Court rejected arguments that President Obama lacked authority to issue the Executive Order, that the posting requirement is arbitrary and capricious, and that the Rule is preempted by the NLRA. The Associations have not indicated whether they will appeal the decision.

Federal contractors with prime contracts in excess of $100,000 or subcontracts in excess of $10,000 must continue to display the Poster “so that it is prominent and readily seen by employees.” 

Please contact the Jackson Lewis attorney with whom you regularly work if you have any questions about obligations under the Executive Order. 

©2015 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

Reproduction of this material in whole or in part is prohibited without the express prior written consent of Jackson Lewis P.C., a law firm with more than 900 attorneys in major cities nationwide serving clients across a wide range of practices and industries. Having built its reputation on providing premier workplace law representation to management, the firm has grown to include leading practices in the areas of government relations, healthcare and sports law. For more information, visit www.jacksonlewis.com.

See AllRelated Articles You May Like

March 19, 2019

Scabby the Rat: Threatening Pest or Famous Labor Icon?

March 19, 2019

Employers have at least one way to rid themselves of Scabby the Rat, a staple of labor union protest, following a decision from a federal appeals court upholding an ordinance enacted by the Town of Grand Chute, Wisconsin, banning anything placed on a public right-of-way that might obstruct vision or distract passing drivers. Construction... Read More

March 11, 2019

Top Five Labor Law Developments for February 2019

March 11, 2019

National Labor Relations Board (NLRB) Member Mark Gaston Pearce has withdrawn his name from consideration for another term on the Board. Pearce reportedly explained his decision by stating it felt best to “remove myself from the center of a political tug of war.” Pearce’s nomination had stalled in the U.S. Senate, which ended its last... Read More

February 15, 2019

Labor Board Returns to Pre-2014 Test for Determining if Individual Is an Independent Contractor

February 15, 2019

The National Labor Relations Board (NLRB) has held that in deciding whether an individual is an independent contractor or an employee, it will return to focusing on the extent to which the arrangement between the ostensible employer and the alleged employee provided an “entrepreneurial opportunity” to the individual, overruling a 2014... Read More